Written by Jessica E. M. Boily , Anna Côté , Mark Youden , Alexei Paish and Harry Dahme, Gowling WLG
COVID-19 has brought upheaval across all industries and sectors of society. While this is no less true with respect to environmental matters, many environmental legal requirements remain in place and require continued compliance, despite challenges faced by companies in Canada. On the other hand, many court proceedings and municipal processes have been suspended. This article sets out some practical guidance on how to navigate both ends of this spectrum.
Ongoing environmental compliance is required
Any company that runs a facility must ensure that it continues to run in compliance with all applicable environmental permits, licenses and approvals, except where the regulator has explicitly suspended environmental obligations.
Operational limits and emergency amendments
Many companies have required dramatic changes in their operations in response to government measures to limit the spread of the pandemic. Many are being forced to suspend operations or have their workforce work remotely, while other are being asked to ramp up production for critical supplies and services. As a result, these facilities may be at risk of operating outside of their mandated capacity. It is important to review all applicable operational requirements to ensure that no limits are being exceeded.
Where exceedances of capacity or limits are found or expected:
- An emergency amendment to the applicable license, permit or approval should be requested immediately. Begin a conversation with the relevant regulator, outlining the reasons that the change is needed.
In addition to ongoing operational limits, many companies are subject to multiple environmental reporting requirements. In some instances, failure to comply with these requirements may constitute an offence. These reporting obligations can include:
- reports required under an Environmental Compliance Approval, a permit, a license, or an administrative order;
- reporting in accordance with federal or provincial greenhouse gas reporting regulations;
- National Pollutant Release Inventory reporting; and
- reporting requirements in other environmental legislation that may apply on a case-by-case basis.
These reporting requirements can be annual, monthly, on a specific date, or on some other schedule.
As of the date of this article, no relief from reporting requirements has been provided by the Ministry of the Environment, Conservation and Parks (MECP) in Ontario through either order or guidance.
In Alberta, a Ministerial Order was issued on March 31, 2020 that provides relief from all requirements to report pursuant to approvals, licenses or registrations under the Environmental Protection and Enhancement Act, Water Act and the Public Lands Act, except in respect of drinking water facilities. This suspension will be in place until August 14, 2020 or until it is terminated.
Federally, correspondence from the Minister of Environment and Climate Change dated April 2, 2020 indicated that federal environmental laws would not be waived but that Environment and Climate Change Canada would exercise enforcement discretion to take into account any challenges faced by regulated parties due to the pandemic.
Some special considerations in the time of COVID-19 include:
- Ensuring companies can meet these obligations hindered by a lack of personnel on site to monitor and collect data, a dramatic shift in operations, a lack of access to hard-copy files stored on site, or a lack of time to compile a report while dealing with this unprecedented situation.
- Verification of upcoming obligations and dates. It is important to have someone closely examine all applicable documents and regulations to verify upcoming reporting obligations and dates. If a company believes that they are at risk of missing a deadline, an extension should be requested in writing well in advance from the relevant regulator.
Emergency and spill response still necessary
The COVID-19 pandemic has not presumptively changed any requirements to report spills, exceedances or other environmental emergencies or to take action to remedy those issues pursuant to relevant approvals (like an Environmental Compliance Approval) or environmental legislation. The Spills Action Centre is operating as normal and MECP officers are still responding to spills and emergencies in the normal course.
Some special considerations may include:
- Ensuring that if there are reduced numbers of employees working at a facility, employees are still familiar with spill response and reporting policies. Consider conducting refresher training (via electronic platforms) or sending reminders via email or phone to on-site staff, if facility personnel have changed due to COVID-19.
- Getting in touch with the regulator. In the event of a spill or reportable event in Ontario, facilities should contact the Spills Action Centre as well as the District Office of the MECP if required. In the event environmental officers are difficult to reach due to remote working, document efforts and continue reaching out, including by email, until the requirements of legislation or your approval are met.
Proactive due diligence
While the exact measures that governments will take to combat the spread of COVID-19 might be difficult to anticipate, companies should strive to take the following proactive steps to minimize their immediate and long-term risk exposure:
- Identify and address outstanding and possible future noncompliance issues.
- Identify key employees whose environmental regulatory tasks may be disrupted by workplace social / physical distancing measures, taking into consideration recent guidance provided by government regulators for specific industries. For example, on March 18, 2020, B.C.’s provincial health officer announced a number of specific measures intended to reinforce social distancing practices at mining and smelting operations.
- Create, update and enforce procedures and protocols for employee and supply shortages, including contingency or operational plans.
- Review agreements with third-party contractors and suppliers, and in particular any force majeure clauses and related notification deadlines and mitigation requirements. Obtaining legal advice to determine the application and enforceability of force majeure clauses during this pandemic is advisable.
- Where possible, identify alternative methods for achieving compliance with environmental regulatory obligations.
Businesses should also strive to maintain detailed records of all efforts made to achieve and maintain environmental regulatory compliance, including the date on which the recorded activity took place, the individual who undertook the recorded activity, and the date and author of the record. First-hand accounts of compliance efforts should be maintained whenever possible.
Examples of records that should be kept include:
- Any changes to operational procedures or protocols, or the implementation of existing contingency or operational plans, as a result of COVID-19.
- Instances of non-compliance, including as applicable the problems faced by the business due to COVID-19 restrictions that gave rise to such non-compliance (e.g. social / physical distancing requirements, staffing shortages, travel restrictions).
- Actual or attempted communication with federal or provincial regulators.
- Actual or attempted communication with third-parties.
- Instances of third-parties being unable to discharge their contractual obligations or delayed in discharging their contractual duties.
Apart from maintaining regular communication with federal and provincial regulatory bodies in order to address challenges that may arise during COVID-19, businesses should also maintain regular, open communication with employees. Employees should be kept informed about any operational changes that may impact the performance of their duties, including updates to any contingency or operational plans. Employees should also be encouraged to disclose any difficulties that they face in discharging their duties as a result of COVID-19 restrictions.
Environmental engineering services still proceeding, but expect delays
Subject to an Emergency Order under subsection 7.0.2(4) of the Emergency Management and Civil Protection Act, effective March 24, 2020, all non-essential places of business were ordered to be closed in Ontario. Construction work and services that supported health and safety environmental rehabilitation projects and environmental management, monitoring and spill clean-up and response (including environmental consulting and environmental laboratories) were on the March 24 list of essential businesses and were permitted to remain open.
On April 3, 2020, the Government of Ontario released a reduced list of essential businesses. Businesses that deliver or support the delivery of services, including environmental rehabilitation, management and monitoring, and spill clean up and response remain on the essential list.
We understand from many environmental engineering firms that field and lab work is proceeding, but project management functions are being conducted remotely. To the extent companies anticipate needing work done at facilities or properties, it is a best practice to confirm that the environmental engineering firm is engaging in proper precautions, including self-isolation for staff returning from vacations and exhibiting any symptoms.
We expect some unique considerations during this time to include:
- Allowing access to facilities and properties for field work. Even “non-essential businesses” which will have closed subject to the Emergency Order are permitted to provide temporary access to allow for “performing work at the place of business in order to comply with any applicable law” and to allow for “inspections, maintenance and repairs”. These exceptions may apply to environmental investigations and remedial work, depending on the circumstances.
- Respecting slower turnaround times for field and lab work. Where these slower turnaround times conflict with regulatory deadlines, it is our expectation that regulators will likely provide appropriate extensions as long as they are provided with notice in writing explaining the issues.
- Availability of materials and equipment as supply chains are interrupted. It remains to be seen whether border closures and other supply chain interruptions affect the availability of materials and equipment for environmental investigations and remedial work.
Slow-down of litigation in Ontario
Many litigation matters in Ontario are currently on pause and awaiting further guidance from the courts. On March 15, 2020, a Notice to the Profession was issued advising that only urgent civil, family and criminal matters in the Superior Court of Justice would be heard. The guidance provides that only the following matters are considered to be “urgent”:
- Urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing;
- Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding;
- Matters related to Public Health and Safety and COVID-19 (for example applications by the Chief Medical Officer of Health, or certain applications related to the Health Protection and Promotion Act);
- Family and child protection matters (such as urgent relief relating to the safety or well-being of a child, or dire issues regarding the parties’ financial circumstances);
- Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. These matters will be strictly limited.
An Updated Notice to the Profession was issued on April 2, 2020, which sets out an additional limited set of matters, beyond those identified as “urgent” which will be heard on a region-by-region basis. It is our understanding that non-urgent civil motions, for example, are being rescheduled to dates after August 2020. Proceedings in the Small Claims Court have also been temporarily suspended effective March 16, 2020. All Provincial Offences Act matters before the courts (including environmental prosecutions under provincial legislation) have been adjourned and will be rescheduled. Defendants can expect to receive a notice advising of the new date by mail.
In addition, an Emergency Order under s. 7.1(2) of the Emergency Management and Civil Protection Act has suspended the running of limitation periods in Ontario and has, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, suspended any period of time within which any step must be taken in any proceeding in Ontario established by a statute, regulation, rule, by-law or order of the Government of Ontario.
Subject to this Order, the Environmental Review Tribunal (ERT) has issued guidance on its website, indicating that in-person hearings are being rescheduled and that front counter services are closed. It has advised that in light of the Emergency Order, if parties (new or current) to a matter before the Tribunal are not able to meet a timeline, the Tribunal will grant extensions. However, the ERT is continuing to conduct teleconference or in writing hearings, mediations and case conferences. This is not surprising in light of the ERT’s normal practices, which include acceptance of electronic filing by case co-ordinators and teleconference hearings.
For further details on the impact on civil litigation in Ontario, see Gowling WLG’s COVID-19 resource page [link].
Some special considerations for those involved in environmental litigation at this time include:
- Ensuring that environmental litigation matters move forward. Many environmental litigation matters that do not require a pending court appearance can continue as normal. Discoveries and mediations can be held via video conferencing applications, if appropriate. Experienced and practical counsel can work with opposing counsel to ensure that matters continue to move forward without court intervention, even in light of the COVID-19 pandemic.
- Determining whether environmental litigation matters are urgent. Where an ongoing environmental litigation matter becomes urgent, counsel can help advise how to obtain an urgent motion or case conference based on the guidance from the courts. Where a new issue arises requiring court intervention, new Statements of Claim and Notices of Action can still be filed via the Superior Court of Justice e-filing system.
Municipal land use planning matters suspended
As municipalities themselves attempt to understand their roles and obligations amid the pandemic, many land use planning matters in Ontario have been delayed, suspended, or had a change in process.
Some municipalities are still accepting planning and development applications, but only by courier or by appointment. Others are only processing applications received before mid-March, or are only conducting building inspections of unoccupied sites. Still others have had to postpone the timeline for updating their Official Plan. These changes in process and timelines will affect many projects that are or otherwise would have been in development. With Ontario’s new Provincial Policy Statement set to come into force on May 1, 2020, this setback in timelines will have an effect on what policy will apply to a given proposal.
In addition, there has also been significant delays with respect to matters at the Local Planning Appeal Tribunal (LPAT). After originally announcing an adjournment of all matters scheduled between March 16 and June 30, 2020, the LPAT has recently reconsidered its options. Starting April 6, the Associate Chair of the Tribunal will decide on a case-by-case basis whether to lift the suspension to schedule settlement hearings via teleconference or written submission. Parties must submit a request form and, among other factors, must demonstrate how the principle of “social distancing” will be strictly adhered to throughout all steps required to present the settlement to the Tribunal.
The LPAT has indicated that it will continue to consider how it can proceeding with other hearing events via teleconference or in writing.
Some special considerations for those involved in municipal land-use planning matters, include:
- Ensuring urgent matters are heard. Experienced counsel can assist in preparing submissions to the LPAT which may allow the matter to proceeding, particularly if it can be done in writing.
Gowling WLG and the Environmental Law team continues to follow changes to legal requirements and proceedings as a result of COVID-19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. It has been republished with the permission of Gowling WLG. It was first published on the Gowling WLG website.